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Madhya Pradesh High Court · body

2002 DIGILAW 147 (MP)

Dharamchand Jain v. State of M. P.

2002-02-08

S.L.KOCHAR

body2002
Judgment ( 1. ) THE applicant has filed this revision against the judgment passed by the Special Judge, Ujjain in Criminal Appeal No. 2/99 on 10-5-2001 arising out of the order dated 13-10-97 passed by the Collector (Food), District Ujjain in Case No. 54/93 directing confiscation of the essential commodities seized by the officials of Revenue and Food Department on 30-4-97 from the grain-shop of firm Shaitanmal-Deepchand. The applicant was the proprietor of the said firm. ( 2. ) THE factual matrix in narrow compass as under:-On 30-4-97, a surprise checking of the shop of the applicant was done by the officials of Revenue and Food Department and they found that the stock of scheduled commodities was not maintained from 26-4-93 to 29-4-93, monthly report of scheduled commodities was not sent and the stock of wheat, gram, maize Raje Peasecod (Batla) and linseed (Alsi) was found in excess and declared as shown in the stock-register whereas, the stock of soyabean was found less than the stock mentioned in the stock-register. Therefore, it was alleged that the applicant-firm has committed the breach of the Part 8 (1) of the Madhya Pradesh Scheduled Commodities Dealers (Licensing and Restriction on Hoarding) Order, 1991 (hereinafter referred to as the order) and condition Nos. 3 (a), (b), (c), 4, 6, 8 and 11 of the License issued thereunder. The articles were seized and handed over on Supurdginama to the applicant. Thereafter, the Assistant Food Officer, Khachrod submitted the report and on the basis of the said report, show-cause notice was issued to the applicant. The applicant submitted reply and after hearing the applicant, the Collector passed the order dated 13-10-97 for forfeiture of the licence security amount of Rs. 2,000/-and all the stock of grains which was found in excess was confiscated in favour of the State Government under the provisions of Section 6-A of the Essential Commodities Act, 1955 (hereinafter referred to as the act for short), against which the appeal was filed and the same has also been dismissed by the Lower Appellate Court. Hence, this revision. 2. Learned Counsel for the applicant submits that the Collector has not applied his mind before the issuance of show-cause notice, which is evident from the record and the Asstt. Hence, this revision. 2. Learned Counsel for the applicant submits that the Collector has not applied his mind before the issuance of show-cause notice, which is evident from the record and the Asstt. Food Inspector, Khachrod, who had inspected the shop alongwith other officials of Revenue and Food Department, though ordered for his examination as a witness, but neither he was examined nor the original documents were filed before the Confiscating Authority, i. e. , Collector (Food), Ujjain. He has also submitted that the confiscation order passed by the Collector on 13-10-97 is nowhere showing the breach of the condition of any order made under Section 3 of the Act. The further contention of the learned Counsel for the applicant is that reasonable and proper opportunity of hearing was not given and the Confiscating Authority has not complied with the mandatory provisions of Sections 6-A and 6-B of the Act. ( 3. ) ON the other hand, learned Counsel for the State submitted that full opportunity was given to the applicant and the Collector as well as the Lower Appellate Court have considered the matter in its proper perspective. There is no illegality or irregularity committed by them. Hence, according to him, there is no substance in this revision petition. ( 4. ) AFTER hearing the parties and perusing the entire record of the Courts below, this Court is of the opinion that the order of the Collector dated 13-10-97 and thereafter the same affirmed by the judgment of Appellate Court dated 10-5-2001 are liable to be set aside. ( 5. ) THE Asstt. Food Officer, Khachrod submitted a note-sheet before the Collector on 26-5-93 about disposal of seized commodity for which the Collector was the competent authority and for issuance of show-cause notice under Section 6-B of the Act to the applicant. There is no order or order-sheet showing the fact that the Collector had gone through this report written and sent by the Asstt. Food Officer, Khachrod and thereafter, passed the order for issuance of show-cause notice. But, the order-sheet dated 7-9-93 is showing the fact that the case was received from the Food Controller and on that day order for its registration was passed. At the same time this order-sheet also is showing the fact that notice which was issued to the applicant was not returned back either served or unserved. Therefore, again the same be issued. At the same time this order-sheet also is showing the fact that notice which was issued to the applicant was not returned back either served or unserved. Therefore, again the same be issued. The case was fixed for 28-9-93 for reply of the applicant. On 28-9-93, the Food Inspector was absent and on behalf of the applicant, his Counsel was also present who filed power and sought time for submitting the reply. The Collector was busy in some meeting. Again, the case was adjourned for 19-10-93, but the same was taken up on 20-10-93. On this date, the Collector was busy in administrative meeting and the Counsel for the applicant sought time for adducing the evidence. The case was adjourned for 10-11-93. Again, on this day, the Collector was busy in Election Meeting and the case was adjourned for 6-12-93. On 6-12-93, the Collector was busy in some meeting of Agriculture Department. On 6-12-93, 20-12-93, 11-1-94 and 31-1-94, the case was adjourned for some or other reasons. ( 6. ) ON 16-12-94, Counsel for the applicant submitted the reply and one copy thereof was given to the Food Inspector. The incharge of the prosecution, i. e. , the Food Inspector sought time for examination of the prosecution witnesses and the case was adjourned for examination of the prosecution witnesses on 23-3-94. On this date, the Asstt. Food Inspector, Khachrod was not present, because he was not having any information for his appearance on this day. The prosecution sought time and the case was fixed on 6-4-94. On 6-4-94, the Asstt. Food Inspector was present, but his examination and cross-examination was not done in the absence of the applicant or his Counsel and the case was fixed for prosecution evidence on 4-5-94. On 4-5-94, the Food Inspector was not present. Same was the situation on 14-6-94. On 20-7-94, 7-9-94 and thereafter on several dates, the case was adjourned because he was busy in some other administrative work. The case was taken up on 28-2-95. On this date, the case was adjourned because of non-examination of the case by the Food Controller, and the Collector was busy in some other administrative work. On 27-3-95, the case was adjourned because, the Food Controller did not examine the case and the Collector was busy in some administrative work. The case was taken up on 28-2-95. On this date, the case was adjourned because of non-examination of the case by the Food Controller, and the Collector was busy in some other administrative work. On 27-3-95, the case was adjourned because, the Food Controller did not examine the case and the Collector was busy in some administrative work. On 17-4-95, 20-6-95, 18-7-95 and 22-8-95 the case was adjourned because the Collector was busy in some administrative work. On 19-9-95, the case was adjourned because of the death of Shri Bhatera, Advocate, the Member of Ujjain Bar Association. On 17-10-95, 14-11-95, 12-12-95 and 22-1-96 the case was adjourned because the Collector was busy in administrative work. On 26-2-96, the case was adjourned at the request of the applicant. After 20-6-95, the order-sheets are not showing about fixing the case for examination of the prosecution witnesses or the Food Inspector or the Food Controller though some order-sheets show adjournment disclosing the fact that the case would be taken up for the purpose as mentioned before. ( 7. ) ALL of a sudden, without examining the Asstt, Food Inspector of Food Controller and producing the original documents, report, copies of the statements of witnesses, Panchnama, seizure-memos, Supurdginama, stock-register and hill-books etc. , the case was fixed for arguments and thereafter for defence and ultimately the case was closed for 26-8-97. On this date, the Counsel for the applicant had submitted the written-arguments and sought decision on the basis of the record. Thereafter, on 13-10-97, final order was passed. ( 8. ) THE complete file of the office of the Collector in Case No. 54/93 is clearly showing that without applying the mind and perusing the documents (photo-copies filed by the Assistant Food Inspector) by Collector for issuance of show-cause notice as per the provisions of Section 6-B of the Act notice was issued. But the notices were issued and also received by the applicant. The applicant has also filed the reply to the show-cause notice and, thereafter, the case was fixed for examination of the Asstt. Food Inspector/food Controller before the Collector and on several dates (fixed for two-three years), the Asstt. Food Inspector or the Food Controller could not be examined and also the original record prepared by the Asstt. Food Inspector at the time of inspection of the shop of the applicant were not produced. Food Inspector/food Controller before the Collector and on several dates (fixed for two-three years), the Asstt. Food Inspector or the Food Controller could not be examined and also the original record prepared by the Asstt. Food Inspector at the time of inspection of the shop of the applicant were not produced. Without showing any reason, the matter of examination of the Asstt. Food Inspector was dropped and the case was fixed for arguments and defence and ultimately the Counsel for the applicant submitted the written arguments. However, the perusal of the order-sheets of the whole case is reflecting that the Collector wanted to satisfy himself after examination of the Asstt. Food Inspector, but the Asstt. Food Inspector or the concerned officer regarding inspection of the shop and preparation of several documents in this regard, was not examined and no reason has been assigned for the same, which shows that the Collector was not having sufficient legal material before him for passing the order of confiscation. ( 9. ) IN the record, the original documents have not been filed, i. e. , the report, Panchnama (two in number), seizure-memos, Supurdginama, stock-register dated 1-12-92 to 25-4-93, mandi bill-book and sale bill-book. The photo-copies have been filed, but that too have not been certified by the concerned officer. The Collector has passed the order on the basis of these photo-stat copies, which cannot be considered without complying with the provisions of Sections 65 and 66 of the Evidence Act regarding use of secondary evidence. ( 10. ) IN this case, from the perusal of the show-cause notice, it appears that the respondent/collector has came to a finding that the applicant has committed the breach of M. P. Scheduled Commodities Dealers (Licensing and Restriction on Hoarding), Order, 1991, Clause 8 (1) and Condition Nos. 3 (a), (b), (c), 4, 6, 8 and 11 of the Licence which is punishable under Section 3/7 of the Essential Commodities Act, and thereafter, he has given notice to show cause for confiscation of seized grains. If the Collector, Ujjain had already made up his mind that there was breach of the aforesaid order and conditions of licence, then the Collector had no other option but to confiscate the seized grains. If the Collector, Ujjain had already made up his mind that there was breach of the aforesaid order and conditions of licence, then the Collector had no other option but to confiscate the seized grains. Before the hearing given on the representation against the allegation under Section 6-A or 6-B of the Act, it is incumbent on the part of the Collector to keep an open mind and give the opportunity to the applicant for making representation that there has been no contravention under rules of the Order, 1991. But, reading the terms of the notice, it is clear that the Collector was already satisfied that there is such a contravention. ( 11. ) IN a case of Munilal Bhagwat Sharan and Ors. v. The Chief Commercial Superintendent Eastern Railway and Ors. (AIR 1972 Calcutta 405) the Calcutta High Court has held :- "section 6-B of the Essential Commodities Act makes it clear that no confiscation can be made unless the competent authority hears a representation from the person affected. If the authorities do not have an open mind before hearing, the provision for hearing under the statute becomes an idle formality. In this case even at the stage of issuing notice of hearing under Section 6-B of the Act the Collector was himself satisfied that a contravention has been made. This cannot be done. The satisfaction that contravention, has in fact taken place can come only after the hearing and not before. " *** *** *** *** *** *** In the present case also, in the show-cause notice, the Collector has shown that the applicant has committed the breach of the M. P. Scheduled Commodities Dealers (Licencing and Restriction on Hoarding) Order, 1991. ( 12. ) THEREFORE, because of this reason also, the order of confiscation is bad in law. ( 13. ) IN the impugned order dated 13-10-97, the Collector has not recorded his satisfaction after persual of the documents. It appears that he has gone through only the simple photo-stat copy of the report submitted by the Asstt. Food Inspector. This report also was not duly certified by the Asstt. Food Inspector and as already stated above, the originals were also not filed and the Collector also did not care for the same at the time of passing of the order. Food Inspector. This report also was not duly certified by the Asstt. Food Inspector and as already stated above, the originals were also not filed and the Collector also did not care for the same at the time of passing of the order. The impugned order dated 13-10-93 passed by the Collector regarding confiscation of the seized grains and Rs. 2,000/- security amount is nowhere indicating that the applicant has committed the breach of any Order made under Section 3 of Essential Commodities Act. Section 6-A of the Act reads as under:- "6-A. (1) Confiscation of foodgrains, edible oilseeds and edible oils.-Where any (essential commodities is seized) in pursuance of an order made under Section 3 in relation thereto, (a report of such seizure shall, without unreasonable delay, be made to), the Collector of the district or the Presidency-town in which such (essential commodity is seized) and whether or not a prosecution is instituted for the contravention of such order, the Collector (may, if he thinks it expedient to do so, direct the essential commodity so seized to be produced for inspection before him, and if he is satisfied) that there has been a contravention of the order, (may order confiscation of)- (a) the essential commodity so seized; (b) any package, covering or receptacle in which such essential commodity is found; and (c) any animal, vehicle, vessel other conveyance used in carrying such essential commodity. " *** *** *** *** *** *** ( 14. ) THE Lower Appellate Court has also failed to examine the aforesaid gluring legal and factual defect while proceeding and passing the orders under Sections 6-A and 6-B of the Act by the Collector. Therefore, this Court is of the considered view that the order dated 13-10-93 passed by the Collector, Ujjain is liable to be quashed and in consequence thereof the order passed in appeal affirming the order of confiscation is also set aside. ( 15. ) IN the result, the revision is allowed and the Collector is directed to return the seized commodities and if the same had already been sold, then its sale proceeds as well as the forfeited security amount of Rs. 2,000/- to the applicant.